In South Africa, marriage is not just a union between two people but also a legally recognised contract with important financial and legal consequences. While many couples are familiar with civil marriages and ante-nuptial contracts (ANCs), there is often confusion about how these agreements interact with customary marriages.

Let’s start at the basics:  An ANC is a legal contract entered into before marriage. It allows couples to regulate how their assets, debts, and financial responsibilities will be handled during the marriage and in the event of divorce or death.

Without an ANC, a marriage in South Africa automatically falls in community of property, meaning:

• Both spouses share a joint estate (assets and liabilities).
• Each spouse is jointly responsible for debts.
• Neither can freely deal with certain assets without the other’s consent.

By signing an ANC, couples may choose a system of out of community of property with or without accrual, which gives more flexibility and financial independence.

Customary marriages are those concluded in terms of the Recognition of Customary Marriages Act, 1998. These marriages are recognised as legally valid, provided they comply with the Act, including:

• Being negotiated and entered into in accordance with customary law.
• Being registered with the Department of Home Affairs.
• The spouses being over 18 and consenting to the marriage.

A customary marriage has the same legal consequences as a civil marriage, which means the property system automatically applies.

Many couples entering customary marriages do not realise that unless an ANC is signed, their marriage will by default be handled as if they are married “in community of property”. This can have serious financial implications, especially if:

• One or both party’s own businesses.
• Either spouse has significant debts.
• Families have property or inheritance that they wish to protect.

By signing an ANC, the couple can ensure that their assets are managed according to their wishes, rather than being automatically pooled into a joint estate.

The timing of signing the ANC is crucial in South Africa:

1. Before the Marriage
• An ANC must be signed before the marriage ceremony takes place (civil or customary).
• The agreement is executed before a notary public and registered in the Deeds Office.
2. Before the Conclusion of the Customary Marriage
• Because a customary marriage is valid as soon as the traditional negotiations and celebrations are completed, the ANC must be signed before lobola negotiations and the formalisation of the marriage rituals are finalised.
• Once the marriage exists under customary law, the ANC can no longer be signed unless the couple jointly applies to the High Court to change their marital regime.
3. After the Marriage (only with court approval)
• If the couple has already concluded a customary marriage without an ANC, they remain married in community of property.
• To change this, they must bring a postnuptial application to the High Court under section 21 of the Matrimonial Property Act. This is often costly and time-consuming.

Practical Advice for Couples

• Seek legal advice early: Speak to an attorney before beginning customary marriage negotiations.
• Clarify your intentions: Decide together how you want to manage your estate.
• Sign before the rituals are concluded: Ensure the ANC is notarised and registered before the marriage is finalised.
• Register the marriage: Even with an ANC, remember to register the customary marriage at Home Affairs for full legal recognition.

An ante-nuptial agreement is a powerful tool that allows couples to control their financial future and avoid unintended consequences of the default marital property system. In customary marriages, it is particularly important to sign the ANC before the marriage is concluded under customary law, as failure to do so locks the couple into a joint estate that may not reflect their wishes.

Early planning and legal advice can save couples from significant financial and legal complications later in life.